MSHA’s 2017 workplace exams rule back in place

The aggregate industry is back to square one on workplace exams.

The Mine Safety & Health Administration (MSHA) reinstated the regulatory provisions for workplace exams in metal and nonmetal mines that were published back in 2017, vacating a final rule that went into effect in April 2018. The U.S. Court of Appeals for the District of Columbia Circuit issued an order in June and a mandate in August requiring this action.

The National Stone, Sand & Gravel Association (NSSGA) describes the development as “unexpected,” but the 2017 rule is nevertheless already back in effect.

A long history

The back and forth of the workplace exams rule over the last two-plus years has produced tremendous confusion for aggregate producers.

In January 2017, for example, MSHA published a final rule – “Examinations of Working Places in Metal and Nonmetal Mines (MNM)” – amending the agency’s standards for the examinations of working places in metal and nonmetal mines. The final rule required that an exam of a working place be conducted at least once each shift before miners begin working in that place; that operators notify miners in the affected areas of any conditions found that may adversely affect their safety or health; that operators promptly initiate corrective actions; and that a record be made of the exam.

The final rule required the examination record to include the name of the person conducting the exam, the date of the exam, the location of all areas examined, a description of each condition found that may adversely affect the safety or health of miners, and the date of corrective action.

In September 2017, however, MSHA reopened the record and proposed limited changes addressing two issues: the timing of workplace exams and which adverse conditions and corrective actions must be included in the working place exams record. Specifically, MSHA proposed amending text to require that an exam of a working place be conducted before work begins or as miners begin work in that place.

The agency also proposed amending language to require that the exam record include descriptions of only those adverse conditions that are not corrected promptly and the dates of their corrective actions.

After receiving comments, MSHA published a final rule in April 2018. In May 2018, however, petitions were filed to the U.S. Court of Appeals for the District of Columbia Circuit to review the April 2018 rule. Thirteen months later, the court vacated the April 2018 final rule and ordered the January 2017 final rule to be reinstated.

This July, MSHA petitioned the court for a panel rehearing. The court denied the petition for rehearing and issued its mandate this August.

Accordingly, MSHA now recognizes the legal effect of the court order and reinstated the regulatory provisions established by the January 2017 final rule.

What’s next

MSHA will use the first 90 days following the reinstatement to fully implement the rule. During the period, MSHA will hold informational stakeholder meetings and provide in-person compliance and technical assistance to ensure miners and mine operators understand the rule’s requirements.